Child Custody | The Better Chancery Practice Blog

Something Beneath the Surface

November 16, 2015 § Leave a comment

The recent COA case Campbell v. Watts, decided October 20, 2015, illustrates a frustrating phenomenon that every chancellor has experienced. It’s the dilemma presented in a child custody case where the proof is not very strong, and certainly not conclusive, yet there is evidence of a situation where questions about the child’s best interest arise.

Greg and Catherine Campbell were divorced from each other in 2004, and they shared joint legal and physical custody of their son, Gavin. In 2010, Greg filed for modification, and he was awarded sole physical custody, with the parties sharing joint legal custody.

In 2013, Catherine, now “Watts,” filed a petition to modify custody, claiming that Greg was withholding visitation. At trial, Gavin testified that he wanted to spend a week alternating with each parent. Catherine testified that Greg was controlling, and that Gavin displayed rebellious behavior. Catherine conceded that Greg had been complying strictly with court-ordered visitation, but she felt that he should be more liberal with allowing her time with Gavin. Greg complained that Catherine and her husband had parties at their home that were inappropriate for Gavin, which Catherine disputed.

The chancellor found that the parties should share joint physical custody, alternating by weeks, and that Greg should honor the joint legal custody arrangement. She ordered Greg to pay Catherine $300 a month child support. The COA opinion described the ruling this way:

¶12. In the chancellor’s bench opinion, she stated that Greg needed to include Catherine in the decision making, per the joint-legal custody arrangement. The chancellor also urged Greg to allow Gavin more time at Catherine’s when he asks to stay there a bit longer. In modifying custody, the chancellor stated Gavin wanted to alternate time with both parents. She further stated that Gavin’s attitude when he returns to his father’s is “just the bubbles of something boiling under the surface.” The chancellor explained that she wanted to prevent Gavin from acting out in the future.

The chancellor dis not specify what were the material change and adverse effect upon which the modification was based, and she did not conduct an Albright analysis.

Judge Fair penned the majority opinion, which was joined by Lee, Barnes, Ishee, Carlton, and Maxwell. Wilson wrote a separate opinion, concurring in part and dissenting in part, which was joined by Irving, Griffis, and James. The majority, which rendered judgment in favor of Greg, devoted part of its rationale to addressing the separate opinion. Because it addresses some legal issues that many of you deal with every day, I will quote from it at length:

¶13. “Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody.” Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶19) (Miss. Ct. App. 2001). Despite Catherine’s claims, the record reflects that she failed to present any proof that Greg’s living situation had changed at all since the modified divorce decree was entered, that it had adversely affected Gavin, or that Gavin was in any danger. See Giannaris, 960 So. 2d at 467-68 (¶10) (modification must be based on conduct of the parent who poses a danger to the mental or emotional health of the child). In fact, Catherine testified that she had no problems with Greg’s home.

¶14. In modifying custody, the chancellor emphasized Gavin’s testimony, where he said he would like to alternate time with both parents. Gavin’s election alone, as the separate opinion admits, does not rise to the level of a material or substantial change of circumstances. In re E.C.P., 918 So. 2d 809, 824 (¶62) (Miss. Ct. App. 2005); see also Best v. Hinton, 838 So. 2d 306, 308 (¶8) (Miss. Ct. App. 2002) (modification of custody based upon the child’s preference was reversed because “such an expression, supported by nothing more,” is not “the type of adverse material change in circumstance that would warrant a custody modification”). The chancellor also expressed concern about Gavin’s “rebellious” behavior. There is no evidence in the record detailing such behavior or showing an adverse effect on Gavin. Gavin’s stepmother, Ashley, explained that any “rebellious” behavior quickly went away after twenty-four hours of Greg’s return to his father’s home. And Gavin testified that his father was not doing anything mean to him in the home. Gavin further testified that he made good grades in school and had a good relationship with his stepmother and younger brother (Greg and Ashley’s son).

¶15. The separate opinion would hold that custody modification can be based on a thirteen-year-old’s expression of his preferences and his reasoning supporting them. We would note, however, that in 2006, Mississippi Code Annotated section § 93-11-65 (1)(a) was amended to say “the chancellor may consider the preference of a child of twelve (12) years of age or older” in a custody determination, as opposed to the previous language stating that the chancellor shall consider the preference of the child. See Miss. Code Ann. § 93-11-65 (Rev. 2013) (emphasis added); Miss. Code Ann. 93-11-65 (Rev. 2004). “Before this amendment, a child over the age of twelve had the ‘privilege’ of choosing which parent to live with, as long as both parents were fit and it correlated with the best interest of the child, instead of merely being able to express that preference, as the statute currently reads.” Phillips v. Phillips, 45 So. 3d 684, 693 (¶28) (Miss. Ct. App. 2010). Now, a child’s preference is recognized as only one of the Albright factors, similar to the “tender years doctrine” (or the maternal preference rule), which was given similar statutory weight at one time. See Albright v. Albright, 437 So. 2d 1003, 1004-05 (Miss. 1983) (acknowledging the recent “reevaluation” and “weakening process” of the doctrine).

¶16. The dissent also emphasizes the fact that Greg’s testimony failed to show how Catherine’s home environment was unfit, and that this finding, in addition to Gavin’s request to spend more time with both parents, supports the chancellor’s modification. But it is Catherine’s burden “to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial [parent Greg’s] home.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). And this change must adversely affect Gavin’s welfare. Id.

¶17. Greg and Catherine were originally granted joint physical custody after their divorce in 2004. In 2010, Greg was granted physical custody. Three years, later Catherine petitioned for joint physical custody. So this will be the third time Greg’s parents have sought involvement of the court in his custodial arrangements. The separate opinion submits that Gavin’s hurt feelings, as explained in his testimony and in conjunction with an expressed “preference” for alternate weekly visitation with both parents, are “adversely affecting” him and justify a change in his custody. But “[i]t is foreseeable, indeed expected, that as a consequence of divorce a child will experience changes in his or her circumstances and experience anxiety as a result of the disruption of the family unit. Divorce has consequences which are often adverse, particularly for younger children.” Lambert v. Lambert, 872 So. 2d 679, 684 (¶19) (Miss. Ct. App. 2003). When considering initial custody arrangements or a modification of custody (whether months or years later), chancellors should not change custody based on these consequences without sufficient justification. Id. The noncustodial parent must prove that the “mental and emotional well-being of the child [is in] danger as a result of living with the custodial parent.” Id. at 685 (¶26). Catherine did not.

¶18. Rather than modify custody, however, the chancellor could have easily modified the visitation schedule based on the evidence of record (particularly Gavin’s testimony). To modify visitation, “[a]ll that need be shown is that there is a prior decree providing for reasonable visitation rights which isn’t working and that it is in the best interests of the children” that it be modified. Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Although Catherine petitioned to modify custody, in her testimony she specifically asserted that she wanted Greg to be more liberal with her visitation. The testimony of Greg, Catherine, and Gavin reflects that the visitation schedule at the time of the hearing clearly was not working. And that evidence as discussed in the chancellor’s ruling, which emphasized Gavin’s need to have an improved relationship with both of his parents, may have been sufficient to support a grant of more liberal visitation to Catherine. See Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994) (stating that the chancellor’s consideration of visitation always includes recognition of the child’s need to maintain a loving and healthy relationship with the noncustodial parent). Modifying visitation would have allowed the chancellor to grant Catherine and Gavin’s request for more time together, without weakening the material change in circumstances standard long required for modification of custody of children.

¶19. As stated in Ballard v. Ballard, 434 So. 2d at 1357, 1360 (Miss. 1983), a change in custody is a “jolting, traumatic experience. It is only that behavior of a parent which clearly posits or causes danger to the mental and emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.” The separate opinion correctly notes that Greg strictly adhered to the court order, keeping Gavin from spending any extra time with Catherine. The chancellor characterized Greg’s behavior as unreasonable. Gavin testified that his dad’s behavior in strictly honoring the court order hurt his feelings. While his behavior may justify a modification of visitation, we cannot find that it amounts to a material change in Greg’s home that has adversely affected Gavin.

The separate opinion would have found that the chancellor did not err in finding a material change in circumstances, and would have remanded for further proceedings.

The chancellor in this case sensed “something boiling beneath the surface,” and she attempted to fashion a remedy. Unfortunately, that is not a legal standard. Still, this case illustrates what happens from time to time in child custody proceedings. There is something askew that needs to be addressed, but the proof simply does not support the measure that the judge deems necessary to resolve the issue.

Correcting Course in an In Loco Parentis Case

November 10, 2015 § 1 Comment

Back in January, 2014, we talked about the COA’s decision in JSW v. AWS, handed down in December, 2013. Here’s our recitation of the facts in JWS:

… Jake and Ann married when Ann was pregnant. Vanessa was the first child born, followed by Brett, a year and a half later. Before she married Jake, Ann had a one-night stand with Tommie. Tommie believed he could be the father of Vanessa, but he took no action because he knew of Jake’s and Ann’s relationship.

In 2007, when Vanessa was nearly three years old, Tommie’s mother called and inquired whether Vanessa might be his child. Ann denied it, but Jake decided to have a DNA test, which ruled him out as the natural father. Jake and Vanessa decided that he would continue to raise Vanessa as his own.

In 2009, Jake and Ann were divorced after five years of marriage. In the divorce, via PSA, the parties agreed that they would share physical custody, alternating weekly.

Less than a year after the divorce, the parties were back in court, fighting over custody and support. Before a hearing could be held in their contest, however, Tommie filed an action for an adjudication of paternity of Vanessa, and for custody, and visitation. A DNA test confirmed that Tommie was the natural father of Vanessa.

In his adjudication, the chancellor considered Jake and Tommie as the natural parents, and Jake as a third party. He found that, although Jake had acted in loco parentis, that alone was not enough to overcome the natural parent presumption. The chancellor awarded Ann custody, and Tommie visitation. Based on Jake’s in loco parentis status, the chancellor awarded him visitation commensurate with Tommie’s.

The COA reversed, finding that the chancellor applied an incorrect legal standard. The COA held that the non-natural father’s fatherly actions had rebutted the natural-parent presumption, the COA directed the trial court on remand to consider Jake as on an equal footing with the natural parents, to conduct an Albright analysis with respect to his claim, and to factor him into the custodial mix, essentially creating a three-way custody contest.

Tommie petitioned for cert, which the MSSC granted. In its decision, handed down December 11, 2014 under the style of In the Interest of a Minor Victoria Denise Waites: Waites v. Ritchie and Sanford, the MSSC reversed, finding that the chancellor did apply the correct legal standard, and reinstating his decision.

You can read the decision for yourself. It includes all the authority you might expect, an reaches what I believe is a rational conclusion based on the entire body of case law that has developed in this area. It also removes the specter of more possible three-way custody disputes in cases like this — although the mind of man and the imagination of lawyers may prove that statement wrong in some later case.

The reason I am posting this now is that I found that I had never posted on Waites, as I should have, and this is a fairly active area of custody litigation, so I wanted this case to pop up if you search the in loco parentis topic.

By the way: notice how the in loco parentis father who was denied custody ultimately by the MSSC’s affirmance nonetheless has kept his visitation throughout?

When is Appointment of a GAL Required?

November 4, 2015 § 1 Comment

There are three circumstances when appointment of a GAL in chancery court is required by statute: (1) when an allegation is made in pleadings or at hearing that there has been abuse or neglect; and (2) when there is an adoption to which both active parents have not consented; and (3) for the child in a termination of parental rights suit.

Other than those situations, it is in the chancellor’s discretion whether to appoint a GAL.

The question remains, however: what needs to be alleged in order to trigger the statutory mandate? That was the question before the court in the COA case of Carter v. Carter, handed down October 6, 2015.

Josh and Jennifer Carter were from each other in 2011. Jennifer got custody of the parties’ daughter, Delaney. Josh filed for modification of custody in 2012, alleging material change and adverse effect. In the course of the proceedings, Josh filed a motion to inspect the premises of Jennifer’s residence. The chancellor ruled that neither Josh nor his attorney should do so, but he appointed Aby, a local attorney to perform the inspection and file a report with the court. Although the appointment did not designate her as a GAL, and it did not spell out any duties of a GAL, Aby titled her report, “Report of Guardian Ad Litem.” Neither party had requested appointment of a GAL. At trial, Aby testified to deplorable conditions at Jennifer’s home, which the chancellor characterized as “shocking,” “squalid,” and “dangerous.” Aby’s report, considered with testimony about Delaney’s medical needs, were enough to convince the chancellor to conclude that custody should be modified, and he awarded custody to Josh.

Jennifer appealed, arguing that the chancellor erred by not appointing a GAL in the case. Specifically, she pointed to Josh’s testimony that she overlooked Delaney’s medical and nutritional needs, which, she contended, should have required the appointment. Jennifer’s argument raises what appears to be a simple question, but is really deceptively complex: what does it take to trigger the statutory mandate?

Judge Fair, for the majority, described the difficulty:

¶16. Our analysis of this issue is made more difficult because our supreme court has not elaborated on what sort of allegations are required, or when or how those allegations must be made, in order to make the appointment of a guardian ad litem mandatory. Neglect is difficult to define and could arguably be present, to some degree, in mundane allegations of imperfect parenting that should not demand investigation by a guardian ad litem. Jennifer’s implicit argument that any suggestion of neglect requires the appointment of a guardian ad litem would amount to a de facto rule that a guardian ad litem must be appointed in most custody disputes.

Almost every custody modification case involves allegations of “imperfect parenting” that often does not rise to the level off neglect and abuse. So where does one draw the line?

The court went on to point out that the MSSC “has always predicated the guardian-ad-litem requirements on the Mississippi Youth Court Law and related statutes,” and analyzed the applicable law. The opinion continues:

¶18. We conclude that since the requirement of appointing a guardian ad litem in chancery cases derives from an exception to the youth court’s jurisdiction over abused or neglected children, to trigger the guardian-ad-litem requirement, the allegations of neglect must be of sufficient severity such that, if proven, they would have triggered the youth court’s jurisdiction had there not already been proceedings in the chancery court. In other words, they must amount to an allegation that the child was a neglected child as defined by the Youth Court Law. It defines a neglected child as one:

(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter;

(ii) Who is otherwise without proper care, custody, supervision or support; or

(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or

(iv) who, for any reason, lacks the care necessary for his health, morals or well-being.

Miss. Code Ann. § 43-21-105(l) (Supp. 2014).

…

¶23. Given the wide range of conduct that could arguably constitute neglect, this Court has held that when neglect is not expressly alleged, the question of whether it has been effectively alleged is entrusted to the sound discretion of the chancellor. See Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004). In this case, the chancellor clearly did not take the allegations and evidence presented regarding Delaney’s health and care in Jennifer’s custody as possessing the weight and severity of an allegation that she was a neglected child under the Youth Court Law, and we cannot say there was an abuse of discretion in the failure to appoint a guardian ad litem to investigate.

The COA did hold that, if appointment of a GAL in this case were required, Aby’s conduct fulfilled that role.

It would be a good idea, if you think a GAL should be appointed, to include some language in your pleadings that invokes the criteria of the Youth Court Act. Then you can point to the specific language of the statute to support your request. Only be sure you have substantial proof to support your allegations, or else your client may be looking at paying out a chunk of cash for the GAL’s troubles, not to mention the other side’s attorney’s fees to defend.

The Extent of Grandparental Visitation

November 2, 2015 § 4 Comments

Jason McKinney and his wife, Shelida, had three children. Jason’s parents, Harold and Kim McKinney, enjoyed spending time with their grandchildren.

After Jason was killed in an automobile accident in 2012, however, Harold and Kim found it increasingly difficult to see and spend time with the grandchildren. It seemed that every time they tried to visit the children had some kind of scheduled activity that prevented or precluded the visit.

Harold and Kim filed a petition with the court for grandparental visitation. Shelida responded by denying that they were not entitled to a court order because she had not denied them visitation, so that they were not entitled. she also denied in her testimony that the grandparents had been involved enough in her children’s lives during Jason’s lifetime so as to entitle them to a court order.

The chancellor found that Harold and Kim were entitled to a court order, and directed visitation every Monday afternoon from 3:30 pm until 7:00 pm, and the third weekend of every month from Saturday at 8:00 am until Sunday at 4:00 pm, and one week in the summer. Shelida appealed.

In McKinney v. McKinney, handed down September 29, 2015, the COA affirmed.

The COA opinion, by Judge Irving, first addressed Shelida’s contention that Harold and Kim were not entitled to visitation because they had not shown that they had been denied, and they did not establish the quality of relationship with the children that would qualify them under the statute. Rejecting Kim’s argument, the court pointed out that Harold and Kim were entitled to an order establishing visitation by virtue of MCA 93-16-3(1), due to the fact that their son, the father of the grandchildren, had died. That fact was the sole prerequisite to a court order, and they were not required to show that they had been denied visitation, or that they had established a viable relationship with the children, as required in MCA 93-1603(2), which applies when both parents of the grandchildren are alive.

Next, the court turned to Shelida’s argument that the chancellor awarded the grandparents too much visitation. Judge Irving’s opinion:

¶14. Shelida next argues that even if visitation was warranted, the chancery court erred in granting the grandparents more visitation than they exercised prior to their son’s death. She stresses that the grandchildren did not visit with their grandparents more than two or three times a week while Jason was alive, and she takes issue with the chancery court granting overnight visitation since the children had rarely spent the night at their grandparents’ house during Jason’s lifetime.

¶15. The Mississippi Supreme Court in Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss. 1996) (internal citations omitted), in expressing concern over excessive grandparent visitation, stated:

Natural grandparents have no common-law “right” of visitation with their grandchildren. Such a right must come from a legislative enactment. Although the Mississippi Legislature created this right by enacting [section] 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive as the rights of a parent.

¶16. For guidance, our supreme court has listed ten factors that should be considered in determining grandparent visitation. The factors are as follows:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time;

2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child;

3. The age of the child;

4. The age and physical and mental health of the grandparents;

5. The emotional ties between the grandparents and the grandchild;

6. The moral fitness of the grandparents;

7. The distance of the grandparents’ home from the child’s home;

8. Any undermining of the parent’s general discipline of the child;

9. Employment of the grandparents and the responsibilities associated with that employment;

10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997). In arriving at the decision to grant the grandparents visitation, the chancery court considered the best interests of the minor children and each of the Martin factors and ultimately fashioned a visitation schedule that took into consideration the grandchildren’s weekly schedule. And regarding the summer visitation, the court noted that it would grant visitation to the grandparents the second week in July so that Shelida would be able to celebrate the Fourth of July holiday with her children. We find nothing excessive about the amount of visitation ordered, and certainly nothing as comprehensive as would be awarded to a noncustodial parent. Therefore, we find no error in the decision of the chancery court. This issue is without merit.

A couple of takeaways:

The grandparents’ visitation is not limited to the amount they experienced during the deceased parent’s lifetime. Rather, the extent of visitation must be based on consideration of the Martin factors and the circumstances of the children’s lives, taking into account that grandparental visitation is less extensive than parental visitation.
Read this decision carefully and understand that there are two categories of grandparental visitation. The first category is nearly automatic; the second is much trickier and requires more proof.
In rural areas it is not uncommon for the children to get on and off the school bus at the grandparents’ home, to run next door to see them at will, to spend nights and weekends with the grandparents, and to have the grandparents participate in almost every facet of the children’s lives. That less “comprehensive” rule announced in Settle v. Galloway seems too stringent in this kind of living arrangement. If a parent dies, why would the grandparents not have more visitation, even to the extent that the dead parent would have had if not deceased.
The more detailed proof you offer to support the time the children have spent with the grandparents, and its quality, and what the grandparents have to offer, will strengthen your case when you represent the grandparents.
In my experience, only grandparents who have truly had a negative influence on the family and would be genuinely bad for the children are denied visitation. Even if your client wants them to have no visitation, you need to help your client understand how the judge will use and apply the Martin factors. Tailor your proof to showing how that visitation should be minimized rather than denied.

The Natural Parent Presumption and the Third-Party Action

October 28, 2015 § Leave a comment

What is the burden of proof on a third-party who is seeking to remove custody from a natural parent? It’s an important question in these days when we are seeing increasing numbers of parents who are abdicating their roles to others, and parents who are unfit to have custody of their children.

Denise Irle and David Foster were not married, but they were parents of two children, Britney and Chase. David was the caretaker of the children, but he died. Patty and Lavirl Foster, David’s parents, petitioned the court for custody of the children. Denise and the Fosters entered into an agreed order under which Denise was to have custody of Britney and the Fosters would have custody of Chase.

Shortly after entry of the agreed order DHS removed Britney from Denise’s home, and the Fosters again filed to get custody of the child. Following a hearing, the chancellor ruled that the Fosters had overcome the natural-parent presumption, and Britney’s best interest would be in the care of the grandparents. Denise appealed, claiming that the chancellor erred by not finding a material change in circumstances. The COA affirmed, and the MSSC granted cert.

In an opinion rendered October 8, 2015, in Irle v. Foster, the court took the opportunity to clarify the law:

¶7. Whatever doubt there may be about the grandparents’ burden, it is universally understood and accepted that a natural parent seeking to modify custody must demonstrate some change in the circumstances that were presented to the chancellor that led to the previous decree, and must show that the changed circumstances are material.

¶8. But thirty-five years ago in Thomas v. Purvis, this Court stated that “[t]he principle that there must be a material change of circumstances which adversely affects a child’s welfare before a custody decree may be modified only applies between parents of the child.” For two reasons, we find this sweeping statement needs clarification and correction.

…

¶9. First, Thomas cited Rodgers v. Rodgers as authority for the broad proposition that a material change in circumstances must be demonstrated only in cases involving natural parents. But nothing this Court said in Rodgers supports this proposition. The chancellor in that case—after concluding that a material change in circumstances had occurred, but without considering the natural-parent presumption—modified an original divorce decree to transfer custody of a minor child from the child’s natural mother to the child’s paternal grandparents. The mother appealed, arguing that she enjoyed the natural-parent presumption, and that the grandparents had presented insufficient evidence to rebut that presumption.

¶10. This Court agreed with the mother, recognizing that a natural parent may not be deprived of custody in favor of a third party unless the third party rebuts the natural-parent presumption by clear and convincing evidence.10 The Rogers Court certainly did not intend to place a burden on a natural parent that it did not place on third parties, thereby making it more difficult for the natural parent to prevail in a custody battle. Stated another way, if a natural parent is required to demonstrate a material change in circumstances in order to win custody, then certainly a third party has at least that same burden.

¶11. Importantly, the Rodgers Court reversed solely because the grandparents failed to rebut the natural-parent presumption, and it never considered or discussed whether the grandparents did or did not have an additional burden to show a material change in circumstances.

…

¶12. Unfortunately, it is not uncommon for natural parents to engage in numerous custody battles. But rarely do third parties—such as grandparents—attempt more than once to take custody from natural parents. This led to the second error in the Thomas Court’s reasoning, which was that it had failed to consider that there would be rare cases—such as the one before us today—where the third parties seeking to take custody from natural parents already had been before the court in a previous custody battle. So, while the logic is obvious that the material-change-in-circumstances test does not apply to third parties appearing for the first time before the chancery court, the same cannot be said where, as here, grandparents previously have been before the court on the very issue of who should have custody. Stated another way, grandparents who already have been before the chancery court in an attempt to remove custody from a natural parent may not reappear before the same chancery court, seeking a change in custody based on the same evidence and circumstances as existed when they first appeared.

¶13. So we hold that in cases involving a third party and a natural parent—where the third party has been before the court in a previous custody dispute over the child—the material change-in-circumstances test applies. A third party attempting to take custody from a natural parent under those circumstances is required to overcome the natural-parent presumption and to show a material change in circumstances from the previous decree.

¶14. Said differently, to obtain custody, the Fosters had to prove: (1) that a material change in circumstances had occurred since they last appeared before the chancellor; (2) that the natural-parent presumption had been rebutted; and (3) that the best interests of the child would be served by granting them custody. The chancellor applied this standard and credible evidence supported his judgment.

[All of the case citations are in footnotes which are omitted here because they are too tedious to copy and paste separately into this text]

So the rule now is that third parties who have previously attempted to obtain custody by court order must prove what is set out in ¶14 in order to modify custody in a later attempt. The upshot of the rule is that it prevents third parties from relitigating facts that have already been presented.

The Unwelcome Overnight Guest

October 14, 2015 § 4 Comments

In a post back in 2011, we visited the topic of restrictions on overnight romantic guests when the child is present. The case back then was Howell v. Turnage, about which you may read at the link. It enforced the MSSC’s holding that, before a chancellor may impose an injunction against such conduct, there must be some evidence that there is an adverse effect on the child, and an extramarital relationship is not per se an adverse effect.

The question whether a chancellor could restrict the presence of an overnight guest arose in the COA’s decision in Carter v. Escovedo, handed down September 29, 2015. The court affirmed the chancellor’s order awarding custody Kylee Escovedo to her father, Marion, and restricting visitation of the mother, Cleondra Carter, to prohibit romantic overnight visitors, stating that there “shall be no overnight visitors of the opposite sex (or of an intimate nature) unless related by blood or marriage while the child is present.” Judge Maxwell’s opinion held that the restriction was supported by the proof, and affirmed the chancellor’s ruling:

¶32. “Visitation should be set up with the best interests of the children as the paramount consideration, keeping in mind the rights of the non-custodial parent and the objective that parent and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house.” Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1988)). This is why “[v]isitation and restrictions placed upon it are within the discretion of the chancery court.” Id.

¶33. Our supreme court has held “an extramarital relationship is not, per se, an adverse circumstance.” Id. (quoting Morrow v. Morrow, 591 So. 2d 829, 833 (Miss. 1991)); Ballard v. Ballard, 434 So. 2d 1357, 1360 (Miss. 1983). So to restrict visitation of overnight guests of the opposite sex, there must be “something approaching actual danger or other substantial detriment to the children.” Id. (emphasis added) (quoting Cox v. Moulds, 490 So. 2d 866, 868 (Miss. 1986)). Indeed, restrictions should be imposed when circumstances present “an appreciable danger of hazard cognizable in our law.” Id. (quoting Newsom v. Newsom, 557 So. 2d 511, 517 (Miss. 1990)). If the presence of a lover would be detrimental to a child, restrictions may be appropriate. Id.

¶34. The chancellor was concerned Carter was “bringing a lot of different men around [Kylee] or sleeping with men with [Kylee] in the same bed.” Carter lived in a one-bedroom apartment and admitted she had allowed men to sleep in the bed with both her and Kylee. Of particular concern was one of Carter’s boyfriends, Michael.

¶35. Wendy Ward, Kylee’s therapist, testified that Kylee suffered from anxiety. And Kylee had confided in Ward that she was scared of Michael. Ward testified that Kylee feared Michael when he “was mean.” According to Kylee, Carter and Michael had fought in front of her, and Michael “made her feel scared and mad.” Because of Kylee’s anxiety over this boyfriend, Ward recommended neither party should have “romantic relationships spending the night when Kylee is present.”

¶36. While we recognize our supreme court has not condoned per se visitation restrictions of overnight guests of the opposite sex, it is clear that such restrictions are in fact necessary when justified. And here, much of the chancellor’s focus honed in on her duty to look out for the best interests of a then three-year-old girl. Based on Carter’s admission of sharing her bed with Kylee and overnight romantic guests, and the therapist’s testimony that Carter’s boyfriend’s presence was detrimental to Kylee, we find the chancellor tailored this prohibition to minimize the detriment to Kylee. We thus find the chancellor did not abuse her discretion in prohibiting overnight nonfamilial opposite-sex guests when Kylee is present.

Here, the lawyers did a nice job at trial of getting adequate evidence in the record to support the chancellor’s finding that there was an adverse effect, and that the restriction was necessary for the best interest of the child.

If you want such a restriction to stand up on appeal, you can’t rely on the mere fact of an overnight visitor. You have to put on proof that the presence of the visitor is having an adverse effect.

Another post on how restrictions on visitation are viewed with disfavor can be found here.

The Touchstone for Modification

October 6, 2015 § Leave a comment

The recent COA decision in Vogt v. Blann, handed down September 15, 2015, includes some interesting language that you might want to take to heart next time you have a custody modification case.

Brian Blann and April Vogt were divorced from each other in 2007. They had one daughter, Adyson, and April was awarded custody of her. In 2012, Brian filed a petition for modification of custody. At trial the proof established some questionable circumstances that had arisen since the divorce:

April dated various men, lived with one, and gave birth to a child whose father she could not identify.
Adyson attended several different schools, and had absences due to moves.
When in kindergarten at one school, Adyson missed 12 days of school, nine unexcused.
At another school during the same school year, Adyson missed six days and was tardy 12 times.
At the time of trial, Adyson was in first grade, and had seven absences and four tardies. She had an “F” in reading.
Adyson had several illnesses, including strep, hand-foot-and-mouth disease, and April did not always get her suitable medical care.
Police were called to an altercation between April and her boyfriend; she was arrested, “went off” on the police, and tried to kick the window out of the squad car where she was detained.
DHS took custody of all three of April’s children (including Adyson) for six months.
Adyson had serious dental issues that April had not adequately addressed.

The chancellor found there to have been a material change and an adverse effect, and awarded Brian physical custody. The parties were to share joint legal custody, and April was given visitation rights. April appealed.

In his opinion, Justice Irving said this:

¶19. The chancellor determined that there had been a material change in circumstances that adversely affected Adyson’s well-being based on the following findings: April’s “numerous moves,” which created instability; “numerous men” in Adyson’s life; “numerous tardies and absences at the school[s,]” some of which were unexplained; and Adyson’s “suffering” grades. The chancellor also noted, with respect to the police incident, that the “reaction that the mother did [sic] at that time to that circumstance was certainly not smart.” The chancellor also pointed out that April did not know if “the children [had woken] up and look[ed] outside” and had seen their mother’s behavior.

¶20. The record is silent as to April’s living conditions at the time of the initial custody order, so we have nothing to compare. [Emphasis mine] …

Now, let’s stop right there.

It’s fundamental that modification of custody requires (a) material change in circumstances of the custodial parent’s living circumstances; (b) adverse effect on the child; and (c) a determination that it is in the child’s best interest to change custody.

Yet here, “the record is silent” as to April’s conditions at the time of the original custody determination in the divorce. Oops. That could have been a fatal mistake, but for the chancellor who was undoubtedly making findings that he felt he had to make for the best interest of Adyson.

If you find yourself in a similar case, be sure to put on proof to show what were the custodial parent’s living circumstances at the time of the initial custody determination. It may come in via adverse testimony of the respondent herself, or through your client. It may be by third parties. It could even come in through the chancellor’s original opinion and judgment at the time of the initial custody determination, which you can get into the record by a certified copy, or by asking the court to take judicial notice.

But however you do it, you have got to show that there has been a change, and to prove change you have to show what the situation was that has now changed. This is true in every type of modification. If it is child support, you have to show the parties’ financial situation, and the age of the child at the time of the initial judgment. Change is the prime mover in modification.

The Presumption from Family Violence

September 30, 2015 § Leave a comment

MCA 93-5-24(9)(a)( i ) creates a rebuttable presumption that it is not in a child’s best interest to be placed in the custody of a parent who has a history of family violence (paraphrased). It’s a topic about which we have posted here before.

Larry and Deidre Hammonds both sought custody in a divorce case between them. Deidre was awarded temporary custody, but Larry filed for emergency custody and modification after Deidre and her 15-year-old daughter by another marriage, Courtney, were involved in a physical altercation that resulted in Deidre’s arrest for domestic violence. Larry’s and Deidre’s own daughter, Angelina, was not present at the time. The charges were later dropped. Courtney went to live with an aunt in N. Carolina, and Deidre filed a petition charging that Larry was wrongfully withholding Angelina’s custody from her. The chancellor ordered that the child be returned to her, finding no showing of immediate or irreparable harm. The court did, however, order that there be no contact between Angelina and Courtney unless supervised by Deidre.

The parties entered into a consent on all issues, including custody, and, following a trial, the judge awarded the parties joint legal custody. Deidre was awarded sole physical custody, and the restrictions as to Courtney were eliminated. Larry filed for rehearing per MRCP 59, but was overruled. Larry appealed on several issues, but we focus here on his claim that the chancellor erred by not giving proper consideration to the family violence.

In an opinion rendered September 15, 2015, in Hammonds v. Hammonds, the COA affirmed. Judge Barnes addressed the domestic violence issue for the court:

¶26. After the physical altercation between Deidre and Courtney, the chancellor had ordered that Courtney must be supervised by Deidre when interacting with Angelina. However, this restriction was rescinded in the court’s final judgment. Larry argues the chancellor “erroneously overlooked” this issue of family violence in awarding primary physical custody to Deidre. He cites Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev. 2013), which states there is a “rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody of a parent who has a history of perpetrating family violence.” This presumption “may be only be rebutted by a preponderance of the evidence,” and:

In determining whether the presumption set forth in subsection (9) has been overcome, the court shall consider all of the following factors:

1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

2. Whether the perpetrator has successfully completed a batterer’s treatment program;

3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.

Miss. Code Ann. § 93-5-24(9)(a)(ii) & (iii).

¶27. However, in the order denying Larry’s motion to alter the judgment, the chancellor explicitly addressed Larry’s claim and discussed the statute, stating:

The presumption [from the statute] comes into existence by showing either a pattern of family violence against a member of the household or a single incident of family violence that results in serious bodily injury. . . . [T]he Plaintiff’s own child, Courtney, was a behavioral problem in the household.

On one occasion[,] the Plaintiff and her child, Courtney, engaged in a dispute which resulted in physical aggression. Criminal charges were filed and later dismissed. There were also allegations regarding an altercation between the Defendant’s child and the Plaintiff. [Fn omitted ] No criminal charges were filed. The record is filled with testimony regarding each party yelling, cursing, hollering and screaming in the household and at the children.

. . . .

Despite the chaos, the Court finds that neither party has a history of perpetuating family violence on any household member and that neither has been responsible for an incident of family violence that has resulted in serious bodily injury.

In a similar case, C.W.L. v. R.A., 919 So. 2d 267, 271-72 (¶¶12-17) (Miss. Ct. App. 2005), we upheld a chancery court’s finding that this statute was inapplicable because there was no “pattern of family violence,” and the testimony of the parties at most “documented general yelling and screaming which, on a few occasions, resulted in slapping and perhaps one incident of choking[,] . . . and there w[ere] no serious or even moderate injuries resulting from the same.” Reviewing the evidence in the present case, we find no abuse of discretion in the chancellor’s findings.

There was no abuse of discretion because the chancellor applied the proper legal standard that there must be either a history or pattern of violence, or there must have been serious physical injury, neither of which were found to be present here. And the evidence supported the chancellor’s findings. Before you invest too much of your custody case on this presumption, make sure that your evidence establishes the prerequisite history and/or injury.

Modifying Joint Legal Custody

September 8, 2015 § 2 Comments

Clayton and Melissa Hickey represented to a chancellor that they could get along well enough to warrant a joint-custody arrangement, and the judge granted them an ID divorce based on their assertion.

Their agreeableness, however, proved less than satisfactory to Melissa. She petitioned the court to modify joint legal custody to grant her sole legal custody based on a running course of disagreements over things such as: whether day care was a “need” of the children to which Clayton should contribute; which school the children should attend; whether Melissa’s boyfriend should be allowed to pick up the children from school; and other differences of opinion.

The chancellor agreed with Melissa and found that the disagreements were a material change in circumstances, and that the children were thereby adversely affected, meriting modification. Clayton appealed.

In Hickey v. Hickey, handed down December 16, 2014, the COA reversed. Judge Roberts wrote for the court:

¶ 29. In Goudelock v. Goudelock, 104 So.3d 158 (Miss.Ct.App.2012), this Court reviewed a chancellor’s decision to modify joint physical and legal custody of a child. Approximately seven months after the divorce, the ex-wife sought to obtain sole physical and legal custody of the child. Id. at 160 (¶ 3). The chancellor found that it was in the child’s best interest for the ex-wife to have sole physical and legal custody of the child. Id. at 162 (¶ 17). This Court found no merit to the ex-husband’s claim that the chancellor had erred. Id. at 164 (¶ 25). We noted that “the parties had not agreed on which school [the child] would attend,” and the ex-husband’s “failure to consent to certain dental procedures resulted in the premature extraction of [the child’s] tooth.” Id. at (¶ 23). The child’s dentist had recommended measures to avoid further decay of teeth that would lead to extraction without treatment. Id. at 161 (¶ 12). Because the child suffered from hemophilia, an extraction was potentially dangerous. Id. The ex-husband refused to allow the child to obtain treatment in Jackson, so the child’s teeth remained untreated for approximately seven months. Id. Consequently, the tooth decay progressed to the point that the child had to undergo an extraction. Id.

¶ 30. Here, there is no evidence that the children had any unusual medical needs, and there was no evidence that the children’s medical needs had been neglected in any way. The supreme court has held that isolated incidents do not justify a change of custody. Touchstone, 682 So.2d at 378 (quoting Smith v. Jones, 654 So.2d 480, 487 (Miss.1995)). “[I]t must be the overall circumstances in which a child lives, likely to remain unchanged in the foreseeable future and adversely impacting a child, to warrant a change of custody.” Id. (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)). In Lipsey v. Lipsey, 755 So.2d 564, 565 (¶ 4) (Miss.Ct.App.2000), this Court held that a chancellor erred when he modified child custody. We based our decision on the fact that “the chancellor gave no reason for modifying custody except for citing the parties’ inability to cooperate with one another.” Id. at 566 (¶ 7). This Court stated that it “will not … allow a change in custody when the child has exhibited no adverse impact and [the child] is equally cared for by both parties.” Id. at 567 (¶ 8).

¶ 31. Based on the record before us, there is no evidence that the children had been adversely affected by the fact that their parents had joint legal custody. The record is simply silent in that regard. Nothing in the record indicates that the children were unhappy, or that any of their needs had been neglected. Because the chancellor did not find that the children had been adversely affected in any way by Clayton and Melissa’s disagreements, we are compelled to follow the supreme court’s precedent and reverse the chancellor’s judgment. Consequently, we render a judgment reinstating Clayton and Melissa’s joint legal custody.

I wonder how this holding meshes with MCA 93-5-24(6), which expressly states that “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” Does Hickey add an adverse effect requirement to the statutory language? If so, why? May a statute be amended by judicial fiat? What if the legislature’s intent was to eliminate the familiar adverse-effect requirement in custody modifications from joint-custody arrangements?

MCA 93-5-24 defines all forms of custody, including exclusive or sole, joint physical, joint legal, and joint physical and legal, so I don’t believe the legislature intended subsection 6 to apply only to forms of custody other than legal; in other words, joint legal custody is not in some undefined category.

What then is the standard of proof applicable in modification of joint legal custody? Is it material change + adverse effect + best interest à la Hickey and the cases dealing with modification of custody in general? Or is it material change only, as provided in MCA 93-5-24(6)?

I pointed out the statutory language in a recent post dealing with the practicality of joint custody.

Ready for Review?

August 31, 2015 § Leave a comment

If a chancellor orders joint custody to be effective only until the child turns five in 2017, at which time the matter will be reviewed, is that a final, appealable judgment?

That was one of the questions addressed by the COA in the case of Thames v. Thames, decided July 28, 2015. We discussed this case here before in the context of the reasonability of a joint custody arrangement.

I say it was “addressed” because the court dealt with it as if the appeal had raised the R54(b) argument as a jurisdictional issue. The appellant, though, did not argue it that way. Rather, she contended that the chancellor erred by violating the maxim that “equity delights to do justice completely and not by halves” when he failed to determine who would have custody of the parties’ daughter after she started five-year-old kindergarten.

What the chancellor actually said was that the parties could have the option either: (a) to agree to a review hearing in February, 2017; or (b) to certify the judgment as final and appealable per R54(b). Despite that, in the record there is no order or judgment agreeing to a review hearing, and there is no R54 certification.

Undeterred, Debra Thames appealed. The case was reversed on other grounds, but here is how Judge Lee dealt with Debra’s maxim argument:

¶10. While Debra does not argue that the judgment was not final and appealable, the underlying issue is the same, and that is whether any issues remain to be resolved [in the litigation before the chancellor]. Following the reasoning in Crider [v. Crider, 905 So.2d 706, 707-08 (¶¶3-5) (Miss. App. 2004)], we find that the judgment was final, and it disposed of all of the issues until Sofia starts five-year-old kindergarten. While the chancellor in this case did not specify the exact month and year in the final judgment as did the chancellor in Crider, the visitation schedule ends in February 2017 [Fn omitted], and the chancellor stated that the order is to remain in effect until further order of the court and only until Sofia starts five-year-old kindergarten. Furthermore, the chancellor gave the parties the option of agreeing to a future hearing to review custody or making the judgment a Rule 54(b) judgment. Either way, a future hearing was to be held to revisit custody. Formal recognition of the need to revisit custody before Sofia starts five-year-old kindergarten did not prevent the judgment from being final.

From this we can take away that a chancellor in a case such as this may leave open the possibility of a future custody arrangement based on a future event that will be a major turning point in the child’s life, such as beginning school, and the fact that it will need to be revisited will not affect its finality for appeal. Allowing chancellors this kind of flexibility provides more options for the trial judge to employ for the best interest of the child.

I think this is a very narrow holding, and you will be unsuccessful if you try in different set of facts to stretch this holding to justify an appeal from an incomplete judgment.

Where Am I?